Opinion
July Term, 1809.
A gives his bond to make title to a tract of land to B. and dies intestate, leaving three sons, his heirs at law, one of age, the other two infants. B dies; the administrators of A recover of the executor of B a judgment for the balance of the purchase money for the land. The executors and devisees of B file a bill, praying for a specific execution of the contract, as against A's heirs at law, and an injunction as against A's administrators, on the ground that part of the land was claimed by an elder title. The heirs, in their answer, declare their readiness to make title, and the administrators admit assets. Injunction dissolved, upon defendants giving security to make title agreeably to the prayer of the bill; and costs ordered to be paid by A's administrators, out of the assets of their intestate.
HENRY MOUNGER, by his bond dated 1 January, 1784, bound himself, his heirs, executors and administrators, in a penalty, conditioned to make to James Tindall, his heirs and assigns, a good and clear right and title in fee simple to three tracts of land as soon as rights could be obtained. The land had been entered by Mounger, and the grants afterwards issued and came to the hands of Tindall. In February, 1795, Mounger died intestate, leaving three sons, Edwin of full age, Thomas and Henry infants. Thomas afterwards arrived to full age. In May, 1795, Tindall died. Afterwards the administrators of Mounger recovered a judgment upon a bond given by Tindall for the balance of the purchase money of the land; and thereupon, in February, 1797, a bill was filed by the executors and devisees of Tindall, against Mounger's heirs aforesaid, and also against David Cowan, a person who claimed two of the tracts sold as above, by an elder title, to carry into specific execution the contract of sale appearing in the bond aforesaid; and for an injunction against the judgment at law, on account of a claim of Cowan. The defendants put in their answers, and admitted the bond for title, and Thomas and Edwin, who were now of age, said they were ready to make titles; the infant Henry submitted to act as the court should direct. (291) The administrators admitted the estate of their intestate, Henry Mounger, deceased, was solvent. On these answers, the court, at September Term, 1799, ordered the injunction to be dissolved, on bond and security to amount of the judgment being given to make title agreeably to the prayer of the bill. The case coming on to be heard on the bill and answers, it was referred to this Court to decide which of the parties to this suit should pay the costs.
From Rowan.
We are of opinion that the costs should be paid by Mounger's administrators, out of the assets of their intestate.